The U.S. Court of Appeals for the 11th Circuit, based in Atlanta, Georgia, will hear a case involving important aspects of the 1978 Pregnancy Discrimination Act, which declares pregnancy discrimination a type of prohibited sex discrimination under federal law. In Durham v. Rural/Metro Corporation, the Court will review whether the employer’s attempt to accommodate the employee’s medical restrictions during pregnancy by offering unpaid time off, rather than paid light duty work, violated the PDA.
The Young test
To answer this question, the court must apply the standard articulated by the U.S. Supreme Court in Young v. United Parcel Service. Young involved a UPS driver who, like the plaintiff in Durham, received a medical lifting restriction because of pregnancy. Instead of offering her light-duty work, which it did for other workers with similar restrictions resulting from on-the-job and off-the-job injuries, UPS put Young on unpaid leave.
The PDA says that an employer must treat “women affected by pregnancy … the same for all employment-related purposes … as other persons not so affected but similar in their ability or inability to work.”
Young held that when a PDA plaintiff does not have direct evidence of discrimination, she can present indirect evidence that implies discrimination the McDonnell Douglas burden-shifting paradigm:
- The employee was pregnant;
- She asked for an accommodation for a pregnancy-related restriction;
- The employer refused to offer accommodation; and
- The employer provide an accommodation to other employees “similar in their ability or inability to work.”
Upon this initial showing, the employer then has an opportunity to present a “legitimate, non-discriminatory” reason for its decision. The burden then shifts back to the employee to establish, through various means, that the employer’s proffered reason was simply a pretext for pregnancy discrimination.
The Supreme Court sent the Young case back to the lower courts for reconsideration under this test because Young had raised a genuine issue of fact related to the fourth prong of the test, by providing evidence that UPS may have “provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished from Young’s.”
The Durham case
Kimberlie Durham was an EMT who’s job regularly required her to perform heavy lifting. When she became pregnant, her physician put her on a 50-pound lifting restriction. Instead of offering her light-duty work like that offered to employees with work injuries, or work as a dispatcher, she was only offered unpaid leave and was no longer scheduled to work.
Instead of taking unpaid leave, she elected to file a discrimination claim with the U.S. Equal Employment Opportunity Commission, followed by the PDA lawsuit.
The U.S. District Court granted summary judgment for the employer, dismissing Durham’s claims. The Court first determined that the employer did not fail to accommodate Durham. It also determined that, even if it did fail to do so, Durham did not provide evidence that other employees were treated more favorably.
In Young, the plaintiff showed three categories of employees offered light-duty work for reasons other than pregnancy, while in Durham, the plaintiff only pointed to one kind, those with work injuries. The Durham court agreed with the employer that Durham would have to show substantial evidence of other workers with off-the-job injury accommodations to “survive summary judgment.” In other words, in Durham, the Court noted that evidence of three other kinds of accommodated workers was enough, but evidence of only one other kind of accommodated worker was not enough.
We will follow this decision with interest and report back in this space when the opinion is issued.